International Municipal Lawyers Association - Local Government Blog

Of Race and Men* | March 26, 2009

Posted By: H. Lawrence Hoyt, Boulder County Attorney

[*with apologies to Mr. Steinbeck, and to the distaff majority of the human race, who are subsumed within the references “man, men, mankind” far too readily.]

Race has always been a lightning rod in American culture, even before the forced transport of African men and women into slavery.  The literature is replete with references in the early 1600’s regarding the “savages” that occupied North America before Europeans took that land away.

In light of the events of last year, culminating in the election of the first American president of African descent, it is worthwhile to examine whether we have “arrived” at that long-awaited, “post-racial” America.  There are certainly those who assert that this is the case, at least as an adjunct to a long-held political position, such as the lack of continuing need for the Voting Rights Act’s Section 5 pre-clearance process.

The same argument will be present in future consideration by state voters on initiatives to stop affirmative action in their states.  See, e.g., Richard Sammon’s column at “Affirmative Action – A Minefield in the Making?”

These initiatives got their start, as is so often the case, in the Golden State of California, where a multi-millionaire, Wade Connerly, pushed for the adoption of Proposition 209 in 1996, as a reaction to the success of programs to ensure the inclusion of women- and minority-owned construction firms in government-contracted projects. 

As for President Obama, Mr. Connerly has already opined that he is no “post-racial” American icon.  See Connerly, “Obama Is No ‘Post-Racial’ Candidate, guest editorial in the Wall St. Journal, June 13, 2008.  He has failed Mr. Connerly’s litmus test, in that he supports continued enforcement of the 1964 Civil Rights Act, including, where necessary, affirmative action programs designed to create opportunity for diverse populations historically on the receiving end of discrimination and exclusion.

[Aside: As a modern European-American, I would consider the irony that Mr. Connerly is pushing this doctrine though he is an African-American.  However, having read many of the opinions of Justice Clarence Thomas with dismay over his 17 years on the US Supreme Court, the sense of irony has been substantially dampened.]

As noted in his Wall St. Journal guest column, Mr. Connerly (a former Regent of the University of California) is the author of initiatives that in 2008 he sought to place on the ballot in 5 states, Missouri, Oklahoma, Arizona, Colorado, and Nebraska.[1]  He succeeded in getting the initiative on the ballot in the latter 2 states. 

As noted above, he was the force behind Prop. 209 in California[2], as well as the successful State of Washington initiative (1998), and the “Michigan Civil Rights Initiative” (okay, I admit my sense of irony is still alive and well; calling this a “civil rights initiative” is deceptively charming) in 2006[3].   Opponents of the putative Michigan ballot issue sought to prevent it from being place on the ballot there; the district court judge, while ruling that the ballot issue could be put on the ballot, also found:

The Court finds that the MCRI engaged in systematic voter fraud by telling voters that they were signing a petition supporting affirmative action. However, the MCRI appears to have targeted all Michigan voters for deception without regard to race. Because the Voting Rights Act is not a general anti-voter fraud statute, but rather prohibits practices which result in unequal access to the political process because of race, the Court must conclude that the defendants’ conduct, though unprincipled, did not violate the Act.

Operation King’s Dream v. Connerly , (unreported) 2006 WL 2514115 (E.D.Mich.,2006), appeal dismissed, Operation King’s Dream v. Connerly  501 F.3d 584, 586 (C.A.6 (Mich.),2007)(“notwithstanding the disturbing allegations underlying the Plaintiffs’ complaint, which the district court substantiated, because the opportunity to keep Proposal 2 off the ballot has long since passed, the Plaintiffs’ appeal is dismissed as moot.”)

[Aside: Now there’s a proposition that we can all get behind: so long as all voters are deceived equally, a ballot issue is legally permissible.  Federal law would only intervene where the supporters of a ballot issue sought to deceive targeted racial or gender “minorities.”]

Apparently taking to heart the rulings in Michigan, Connerly’s latest round of state initiatives have been further refined to obfuscate their true meaning and impact.  The initiative filed in Colorado in early 2007 was entitled “Prohibition on Discrimination and Preferential Treatment by Colorado Government” and the ballot issue language that appeared on the statewide ballot in Colorado in November, 2008 as Amendment 46, read as follows:

Shall there be an amendment to the Colorado constitution concerning a prohibition against discrimination by the state, and, in connection therewith, prohibiting the state from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting; allowing exceptions to the prohibition when bona fide qualifications based on sex are reasonably necessary or when action is necessary to establish or maintain eligibility for federal funds; preserving the validity of court orders or consent decrees in effect at the time the measure becomes effective; defining “state” to include the state of Colorado, agencies or departments of the state, public institutions of higher education, political subdivisions, or governmental instrumentalities of or within the state; and making portions of the measure found invalid severable from the remainder of the measure?

This language was set by the state Title Board, and was affirmed by the state Supreme Court by order September 10, 2007[4].

The proposed constitutional amendment was described to voters statewide in Colorado, as is required, in the publication created by the state’s Legislative Council (staff to the state legislature) known as the “Blue Book”.  The description for Amendment 46 was entitled: 

Discrimination and Preferential Treatment by Governments

Amendment 46 proposes amending the Colorado Constitution to:

● prohibit Colorado governments from discriminating against or granting preferential treatment to

any individual or group on the basis of race, sex, color, ethnicity, or national origin in public

employment, public education, or public contracting;

● make exceptions for federal programs, existing court orders or other legally binding agreements, and bona

fide qualifications based on sex; and

● provide the same remedies that are available for violations of existing Colorado anti-discrimination law.

Amazingly, despite the reaction one would expect from such a description (“well, duh, of course we don’t want our state or local governments to be discriminating”), Colorado voters turned down Amendment 46, although by a fairly narrow margin (49.2% for, 50.8% against.)  However, in Nebraska, a very similarly worded initiative was approved by 58% of state voters.

Next time: we consider the actual legal effect of these initiatives when adopted amending state constitutions: is there any real impact, or has federal law limited the use of affirmative action so significantly that these initiatives are simply a political statement akin to the “English-only” initiatives?

[2] For the full text of the amendment to the California state constitution, see:



[4] The standards by which ballot titles are adjudged, as stated on the Colorado Supreme Court website, are whether the initiative concerns a single subject, and if so, is the title fair and not a misleading statement of the meaning of the actual proposed constitutional or statutory amendment text.

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.







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